Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F16506
RUSHING, P.J.
Defendant Nicholas Donofrio appeals from a judgment entered after a jury convicted him of possession of marijuana for sale. (Health & Saf. Code, § 11359.) On appeal defendant contends that the trial court improperly admitted profile evidence, imposed an unconstitutional probation condition and erroneously imposed a $175 AIDS Education Fee. The Attorney General concedes that the fee should be stricken. We also strike the probation condition, finding it to be unconstitutionally vague and overbroad. As modified, we affirm the judgment, finding any error in admitting improper profile evidence to be harmless.
Factual and Procedural History
Defendant was pulled over in a routine traffic stop on Pacific Avenue in Santa Cruz by Officer Saul Rodriguez because defendant was not wearing his seatbelt. During the stop, Officer Rodriguez noticed a strong odor of marijuana. He asked appellant about the smell and appellant admitted to having smoked earlier that day. In response to more questions, defendant voluntarily produced 21 baggies of marijuana from four separate pockets on his jacket. Thirteen of the baggies were marked with the numbers 7 and 14, which corresponded to their approximate weights of 7 grams and 14 grams. The other baggies were unmarked. A search of defendant incident to arrest revealed $3,693 in cash on his person. Although police found no other drugs, drug paraphernalia or cash in the car, they did find a cell phone and four air fresheners spread throughout the car.
After his arrest, defendant told police that he was holding the marijuana for a friend named River, who was an “old hippy” living on the streets of Santa Cruz. Defendant also claimed that the money they found on him was his life savings.
Defendant was arrested and charged with possession of marijuana for sale. (Health & Saf. Code, § 11359) and failure to use a seatbelt. (Veh. Code, § 27315, subd. (d)(1).) Defendant pleaded not guilty to both of the charges. After the prosecution put on its case at a three day jury trial, defendant testified that he had met River at a house where they both briefly lived. According to defendant, the house was filled with pot-smoking roommates who allowed many transients, such as River, to temporarily stay at the house. Shortly before his arrest, everyone was required to vacate the house because the owner was undertaking repairs. Defendant claimed that while he was looking for an empty box for moving his belongings, he found the baggies of marijuana in a box in the garage of the house. One of the other residents of the house, named John, told defendant that the marijuana belonged to River and that defendant should give the marijuana to John to hold for River. Defendant testified that he was on his way to meet John to give him the marijuana when he was arrested. Defendant further testified that he sometimes smokes marijuana to sooth the pain of his pancreatitis, but does not sell marijuana and never smokes in the car, which is why there was no smoking paraphernalia found in the car.
Regarding the money found on his person at the time of his arrest, defendant testified that it was for his general expenses and cash for a rental deposit. Defendant explained that he gets $1,100 monthly in disability checks and has withdrawn money from his savings account over a three to four month period of time.
The jury found defendant guilty of possession of marijuana for sale and the trial court entered a finding of guilty as to the seat belt violation. At sentencing, the trial court dismissed the seatbelt violation and suspended the imposition of judgment and sentence. The court placed defendant on three years of supervised probation on the condition that he serve 60 days in the county jail, pay a restitution fund fine pursuant to Penal Code section 1202.4, and conditional $200 probation revocation fine pursuant to Penal Code section 1202.44. The court also imposed a $20 security fee, a $175 AIDS fee pursuant to section 1463.23, a $175 lab analysis fee pursuant to Health and Safety Code section 11372.5, a $150 drug program fine, and a $200 restitution fine pursuant to Penal Code section 1202.4. The court imposed additional terms and conditions of probation, including the requirement that defendant “not associate with persons whose behavior might lead to criminal activities.” Defendant received two days credit for time served.
This timely appeal ensued. While the appeal was pending in this court, the Attorney General filed a motion to dismiss on the grounds that defendant had absconded and was therefore not entitled to an appellate remedy. This court ordered that the motion be considered together with the appeal. Subsequently, the Attorney General agreed to withdraw the motion because the defendant was once again in custody. We now consider defendant’s substantive contentions on appeal.
Discussion
The Expert Testimony of Officer Azua
On appeal defendant contends that the trial court erroneously admitted prejudicial expert testimony describing defendant’s conduct and characteristics as consistent with the profile of a “mid-level” drug dealer. Defendant further contends that this evidence violated his right to a fundamentally fair trial under the due process clause of the United States Constitution.
We review trial court rulings concerning the admissibility of evidence for abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
At trial, the district attorney put on only one witness, Officer Bill Azua. Officer Azua was offered as an expert in the investigation of possession for sale. During his testimony, Officer Azua testified, over defendant’s objections, that the nature of defendant’s conduct was consistent with a “mid-level drug dealer.” Specifically, Officer Azua testified that “the mid-level drug dealer is going to be... a person that has-is able to be mobile, a person that has communication with his clientele or her clientele. The mid-level drug dealer is going to have money... in different locations because, again, that person doesn’t want to be pulling out a large amount of money in front of a clientele and being robbed. The person is going to have air fresheners.” In response to the prosecutor’s hypothetical based on the facts of this case, the Officer concluded that, “21 baggies of marijuana and the amount and the denominations of the cash... would classify a person... as a mid-level drug dealer.” After the hypothetical, the prosecutor elicited the officer’s conclusion as to defendant’s guilt. Officer Azua stated that defendant “possessed for sale the 21 baggies of marijuana in this case, ” and that his opinion was based on, “the marijuana and the cash. [B]ase that-my opinion is based on that the fact that defendant had this in his possession, different locations-the money is in different locations, the freshener, the cell phone, the fact that the person is mobile. I base-all that items and evidence I base my opinion that he possess this marijuana for the purpose of sales.”
Defendant’s attorney objected multiple times to this line of questioning as impermissible profile evidence, and although the court sustained the objection as to some points, as to the testimony cited above, the objections were overruled. On appeal the Attorney General claims that Officer Azua’s testimony constituted proper background testimony about the common methods that a mid-level drug dealer will use to sell drugs so that the jury could understand the various aspects of appellant’s conduct, not to show that appellant fit a particular profile and therefore should be found guilty as charged. Even if some of Officer Azua’s testimony was proper “background” information, helpful to the jury to understand the intricacies of drug dealing, the majority of his testimony, including his conclusion that defendant fit the profile of a mid-level drug dealer was impermissible profile evidence.
“[P]rofile [E]vidence” is an “ ‘informal compilation of characteristics often displayed by those trafficking in drugs.’ [Citation.] ‘[A]n “abstract of characteristics found to be typical of persons transporting illegal drugs.” ’ [Citation.]... ‘[T]he distilled experience of narcotics officers concerning characteristics repeatedly seen in drug smugglers.’ [Citation.] A profile is simply an investigative technique. It is nothing more than a listing of characteristics that in the opinion of law enforcement officers are typical of a person engaged in a specific illegal activity.” (U.S. v. McDonald (10thCir. 1991) 933 F.2d. 1519, 1521.)
While courts have routinely allowed the use of profile evidence to justify investigative stops (U.S. v. McDonald, supra, 933 F.2d. at p.1521), they have condemned convictions where profile evidence was used as substantive evidence of guilt. (Ibid.) Where used as evidence of guilt, it has long been held that profile evidence is “inherently prejudicial. While the similarities may be a proper consideration for law enforcement in investigating criminal activity, they are inappropriate for consideration on the issue of guilt or innocence because of] the potential of including innocent people as well as the guilty.” (People v. Martinez (1992) 10 Cal.App.4th 1001, 1006 (Martinez).) In Martinez the defendant was convicted of participating in an auto theft ring that was stealing cars and taking them to Central America. The evidence presented at trial showed that the defendant had been driving a car “similar to many other stolen vehicles being transported to Central America, ” the “route [he had selected] was similar to that used by many other drivers of stolen vehicles transporting vehicles to that area, ” “the time of his travel was similar to that of many other drivers of stolen vehicles, ” “the false documents he was carrying were similar to false documents found on the other drivers of stolen vehicle, ” and “his denial of knowledge and his claim that he bought the car on the street corner was similar to the stories given by many other drivers of stolen vehicles.” (Ibid.) The Martinez Court found that although this evidence was not characterized per se as a “ ‘profile, ’ ” the clear thrust of the evidence was to establish that the defendant “ ‘fit’ ” a certain “ ‘profile.’ ” (Ibid.) The Court held that the trial court erred in admitting this evidence. (Id. at p. 1008.)
Similarly, in People v. Derello (1989) 211 Cal.App.3d 414, the Court held that while the evidence of a narcotics trafficker profile may be introduced for the limited purpose of explaining and/or justifying initial police conduct in the case such as a detention, the elements of a profile may not “be used indiscriminately as evidence in the trial of a case.” (Id. at p. 425) The court concluded that the evidence that Derello fit a profile because of the amount of gold jewelry he wore, the amount of cash he carried, his youth, his casual dress, or his rental of an expensive car “had no tendency in reason to prove any issue in the trial and was inadmissible on any ground.” (Id. at p. 426.) The court concluded that there was “no justification for admitting testimony concerning the existence and nature of the drug trafficker profile itself. Such evidence has absolutely no relevancy to the elements of the crime and might be perceived by the jury to be evidence of the character of defendants as drug couriers.” (Ibid.)
Here, Officer Azua testified that he believed defendant was a mid-level drug dealer because of the amount of drugs he carried, the way in which the drugs were divided, the fact that he was mobile, had a cell phone and the amount and denominations of cash he carried. The Attorney General argues that this is mere background information that was meant to be helpful to the jury. “Not all testimony concerning general patters of criminal activity is ‘profile’ testimony. ‘Profile evidence is a “point by point examination of profile characteristics” that enable[s] the investigator to justify pursuing the matter.’ [Citation.] ‘[B]ecause of the limited usefulness of profiles, courts have declared testimony concerning the defendant’s alignment with a particular profile incompetent as direct evidence of guilt.’ ” (People v. Lopez (1994) 21 Cal.App.4th 1551, 1555 (Lopez).) “By contrast, background testimony is not ‘profile’ evidence and does not specifically address the guilt or innocence of the defendant. Instead it enables the jury to understand other evidence that does address guilt or innocence.” (Ibid. at 1556) “Thus in a prosecution for possession of cocaine for sale, the evidence might show recovery of only a small amount of the drug at the defendant’s house together with recovery of a large number of small plastic [b]aggies. A police officer with appropriate expertise may be allowed to testify that cocaine is sold in small plastic [b]aggies in order to explain the meaning of the evidence itself.” (Ibid., citing U.S. v. Dunn (D.C. Cir. 1988) 846 F.2d 761, 763.) “When ‘the subject matter [of the expert testimony] was sufficiently beyond the common expertise of the trier of fact to render expert testimony not only helpful but necessary for an understanding of the meaning and import of various actions’ established by other evidence, it is within the trial court’s discretion to permit such testimony.” (Lopez, supra, 21 Cal.App.4th at p. 1556, citing People v. Harvey (1991) 233 Cal.App.3d 1206, 1228 .)
One of the main thrusts of Officer Azua testimony was that marijuana is often sold in the types of baggies and quantities found in defendant’s possession. The method and quantity of offering marijuana for sale is arguably “beyond the common expertise” of the jury in this case. Therefore it was within the trial court’s discretion to permit such testimony. (Lopez, supra, 21 Cal.App.4th at p. 1556, citing People v. Harvey, supra, 233 Cal.App.3d 1206, 1228 .)
However, the officer’s testimony did not stop there. He opined that the amount of cash and the denominations were typical of a mid-level drug dealer. He also testified that the fact that defendant was mobile was typical. Both these types of characteristics were deemed improper profile evidence by the court in People v. Derello, supra, 21 Cal.App.3d 414, 425. Finally, the fact that the trial court, over objection, allowed the officer to opine not only that defendant’s acts fit a profile, but that defendant actually was a mid-level drug dealer, goes well beyond “background” testimony. The trial court erred in overruling the defendant’s objections. A trial court should never allow an expert to testify about a defendant’s guilt.
Harmless Error
The Attorney General argues that even if Officer Azua’s testimony is characterized as impermissible profile evidence, any error in admitting the testimony was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) Generally, where the profile evidence is the only evidence of guilt, courts condemn the convictions. (Martinez, supra, 10 Cal.app.4th at p. 1008.) However, where the convictions are supported by substantial other evidence of guilt, courts uphold the convictions. (U.S. v. McDonald, supra, 933 F.2d at p. 1521; People v. Derello, supra, 211 Cal.App.3d at p. 426.)
Here, while Officer Azua’s testimony was the only testamentary evidence presented by the prosecutor, there was significant other evidence of defendant’s guilt of the crime charged. Defendant voluntarily turned over a considerable amount of pre-packaged drugs when stopped by police. There was no dispute that he possessed the marijuana and no dispute that he knew what it was. Defendant did not appear to be under the influence when arrested and he did not have any drug paraphernalia on his person or in his vehicle, so there were no indications that he was personally using the marijuana. While defendant claimed that he was holding the drugs for someone else, the jury was free to disbelieve the defendant’s proffered explanation for why he had them. Finally, Officer Azua’s permissible background testimony regarding the “methods of packaging” and “amounts of marijuana offered for sale” provided the jury with sufficient background information to determine that the drugs had been pre-weighed and pre-marked in preparation for sale. Consequently, the jury had sufficient non-objectionable evidence from which to convict the defendant of possession of marijuana for sale. It is not reasonably probable the jury would have acquitted the defendant absent the admission of the profile evidence.
Further, we find that defendant’s due process rights were not violated. If a trial court commits an error which renders a defendant’s trial arbitrary and fundamentally unfair, it has violated his federal due process rights. (See Chapman v. California (1967) 386 U.S. 18, 24.) State trial procedures may violate due process when they create an unacceptable risk of prejudice. (Estelle v. Williams (1976) 425 U.S. 501, 505.) As we discuss above, there was sufficient non-objectionable evidence from which the jury could have found the defendant guilty. Therefore, there was no unacceptable risk of prejudice, and no violation of due process.
The Challenged Probation Condition is Unconstitutionally Vague and Overbroad
Defendant next contends that the probation condition that he “not associate with persons whose behavior might lead to criminal activities” must be stricken because it is unconstitutionally vague and overbroad. The Attorney General concedes that the condition is unconstitutional, but argues that this court should modify the condition by adding a knowledge requirement to render the probation condition constitutional.
To pass constitutional muster, a probation condition that restricts the defendant’s first amendment right to free association must be narrowly drawn to serve its rehabilitative purpose and to provide the defendant with “ ‘fair warning’ ” that he could be in violation of its terms. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) We review the constitutionality of a probation condition restricting a defendant’s right of association de novo. (Rubin v. City of Burbank (2002) 101 Cal.App.4th 1194, 1199.) The condition at issue here is simply improper and cannot be modified to meet constitutional standards. It is not narrowly drawn and contains no guidelines for identifying individuals whose behavior “might lead to criminal activities.” It would be impossible for defendant or his probation officer to identify the precise class of person with whom defendant may not associate. Even with a “knowledge” requirement it would remain improperly vague.
The Trial Court Erroneously Imposed a $175 AIDS Education Fee
The defendant contends and the Attorney General concedes that the $175 AIDS Education Fee was not authorized under Penal Code section 1463.23 and must be stricken. We agree and will modify the judgment accordingly.
Disposition
The probation condition requiring appellant to “not associate with persons whose behavior might lead to criminal activities” is hereby stricken from the judgment. The $175 AIDS Education Fee is also stricken from the judgment. As modified, the judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.